1768.
By the Court.–The ſtrict Rules of Law with regard to Evidence ought not to be extended to Mercantile Tranſactions. In this Caſe, on proving the hand Writing of the Factor, let the Account of Sales be given in Evidences; which was accordingly done.
John Swift verſus Hawkins and others.
Debt ſur Obligation.–On the plea of payment Defendants offered to give no Conſideration in Evidence. Objected, that the Conſideration of a Bond is not enquirable into, the paſſing the Bond being a gift in Law of the money.—To this it was anſwered, and ſo ruled By the Court that there being no Court of Chancery in this Province, there is a neceſſity, in order to prevent a failure of Juſtice, to let the Defendants in under the plea of payment to prove miſtake or want of conſideration: And this the Chief Juſtice ſaid he had known to be the conſtant practice of the Courts of Juſtice in this Province for thirty nine Years paſt.
For the Plaintiff, the following caſes were cited: Plowd. 308. b. Gilb. Rep. 154. Hard. 200. 3. P. Will. 222.
The Leſſee of lloyd verſus Taylor.
Ejectment for Ground in the City of Philadelphia. Mercy Maſters being ſeized in fee married Peter Lloyd. Peter Lloyd and Mercy his Wife convey to Ralph Aſhton in 1727. Ralph Aſhton reconveys to Peter Lloyd the Land in queſtion. Afterwards, in 1738, on a Judgment againft Peter Lloyd, the Land in queſtion was taken in Execution and ſold by the Sheriff to the Defendant for £1300.—Plaintiff claims as Heir at Law to Mercy Lloyd, inſiſting that his Mother being a Feme Covert could not legally convey her eſtate without an examination by Writ. And though in the caſe of Davey verſus Turner tried in this Court September 1764,[1] it was ruled that an acknowledgement of the Deed on a private examination before a Juſtice of peace, was ſufficient under a long Uſage to ſanctify her Deed, though not ſtrictly agreeable to Law; yet here there was not even that acknowledgment or private examination.
But it appearing in Evidence, that it had been the conſtant Uſage of the Province formerly for Femes Covert to convey their Eſtates in this manner, without an acknowledgment or ſeparate examination; And that there were a great number of valuable Eſtates held under ſuch Titles, which it would be dangerous to impeach at this time of day, the Court gave a Charge to the Jury in favour of the Defendants, founded on the Maxim Communis Error facit Jus. And the Jury accordingly found for the Defendant.
- ↑ See Ant. p. 11.
